FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL LACEY; JIM LARKIN;
PHOENIX NEW TIMES, LLC,
Plaintiffs-Appellants,
v.
MARICOPA COUNTY, a public entity, No. 09-15703
JOSEPH ARPAIO, Sheriff, and AVA
ARPAIO, husband and wife; DENNIS D.C. No.
2:08-cv-00997-
WILENCHIK and BECKY BARTNESS, SRB
husband and wife; JOHN DOES I-X;
JANE DOES I-X; BLACK
CORPORATIONS, I-V; and WHITE
PARTNERSHIPS, I-V,
Defendants-Appellees.
7617
7618 LACEY v. MARICOPA COUNTY
MICHAEL LACEY; JIM LARKIN;
PHOENIX NEW TIMES, LLC,
Plaintiffs-Appellees,
v.
JOSEPH M. ARPAIO, Sheriff and
husband; AVA ARPAIO, wife; JOHN No. 09-15806
DOES I-X; JANE DOES I-X; BLACK
D.C. No.
CORPORATIONS, I-V; WHITE
PARTNERSHIPS, I-V; MARICOPA 2:08-cv-00997-
SRB
COUNTY ATTORNEY’S OFFICE, a public
entity, OPINION
Defendants,
and
DENNIS WILENCHIK; BECKY BARTNESS,
wife,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted
June 18, 2010—San Francisco, California
Filed June 9, 2011
Before: Jay S. Bybee, Timothy M. Tymkovich,* and
N. Randy Smith, Circuit Judges.
Opinion by Judge Tymkovich;
Partial Concurrence and Partial Dissent by Judge Bybee
*The Honorable Timothy M. Tymkovich, United States Circuit Judge
for the Tenth Circuit, sitting by designation.
LACEY v. MARICOPA COUNTY 7623
COUNSEL
Michael J. Meehan, Munger Chadwick, P.L.C., Tucson, Ari-
zona (Michael C. Manning, Leslie E. O’Hara, and John T.
7624 LACEY v. MARICOPA COUNTY
White, Stinson Morrison Hecker LLP, Phoenix, Arizona, on
the opening brief) for the plaintiffs/appellants/cross-appellees.
Eileen Dennis GilBride (William R. Jones, Jr., with her on the
brief), Jones, Skelton & Hochuli, P.L.C., Phoenix, Arizona,
for defendants/appellees/cross-appellants Joseph and Ava
Arpaio.
Scott H. Zwillinger (Laura A. Freeman with him on the
briefs), Zwillinger Greek Zwillinger & Knecht PC, Phoenix,
Arizona, for defendants/appellees/cross-appellants Dennis
Wilenchik and Becky Bartness.
Timothy J. Casey (Drew Metcalf with him on the brief), Sch-
mitt, Schneck, Smyth & Herrod, P.C., Phoenix, Arizona, for
defendants/appellees/cross-appellants Andrew Thomas, The
Maricopa County Attorney’s Office, and Maricopa County.
OPINION
TYMKOVICH, Circuit Judge:
This case arose from the controversial late-night arrests and
subsequent release of two Phoenix newspaper executives. As
a result, Michael Lacey, Jim Larkin, and Phoenix New Times,
LLC (Plaintiffs) sued various officials connected with the
Maricopa County Attorney’s Office and the Sheriff’s Office,
including the county attorney, the sheriff, and a special prose-
cutor. They alleged the special prosecutor and possibly others
ordered the arrests of Lacey and Larkin at their homes in the
middle of the night after The Phoenix New Times newspaper
published various articles critical of the officials. They claim
the arrests violated their federal and state rights.
The district court dismissed many of the claims on quali-
fied and absolute immunity grounds, and Plaintiffs appeal,
LACEY v. MARICOPA COUNTY 7625
contending the district court erred in dismissing their federal
claims and in remanding their remaining state claims to state
court.
Having jurisdiction pursuant to 28 U.S.C. § 1291, we
AFFIRM in part and REVERSE in part. While many of the
actions alleged here are protected by either absolute or quali-
fied immunity, the actions of the special prosecutor in arrang-
ing Plaintiffs’ arrests raise colorable claims of First and
Fourth Amendment violations.
I. Background Facts and Proceedings Below
A. Facts
For purposes of our discussion we accept the following
facts from the complaint as true and in the light most favor-
able to the Plaintiffs. See Smith v. Jackson, 84 F.3d 1213,
1217 (9th Cir. 1996). Plaintiffs operate an alternative weekly
newspaper, The Phoenix New Times, which has for many
years published articles and editorials highly critical of Arpaio
and his policies.
The particular article that set in motion the events relevant
to this litigation was published in 2004 and criticized a series
of commercial land transactions involving Arpaio. In particu-
lar, the article challenged Arpaio’s motives for removing his
personal information from a number of public records that
detailed his commercial land holdings. After the article,
Arpaio justified the removal by claiming he had received
death threats and therefore did not want his personal address
available to the public. Plaintiffs printed a follow-up article
contending Arpaio’s explanation was implausible since a
number of government and political party websites already
contained Arpaio’s personal information. To show this, the
paper published in both its print and online versions Arpaio’s
home address, which Plaintiffs claimed they obtained from
the government and political websites.
7626 LACEY v. MARICOPA COUNTY
After publication of the second article, Arpaio considered
criminal charges against the Plaintiffs because he believed
they had violated an Arizona statute that prohibited the dis-
semination of personal information of law enforcement offi-
cers on the world wide web.1 Rather than filing a
contemporaneous complaint with the county attorney, how-
ever, Arpaio waited until an upcoming election, when Andrew
Thomas, a political ally, was elected the new county attorney.
Arpaio met with Thomas immediately after the election to
discuss his concerns regarding Plaintiffs, but not until April
2005, ten months after the publication of his personal infor-
mation and two months after Thomas took office, did he
request Thomas to investigate The Phoenix New Times.
Thomas’s staff reviewed the charges but concluded the case
was weak, and in an internal report in August 2005 recom-
mended Thomas decline to prosecute.
By this time, The Phoenix New Times had begun to publish
articles critical of Thomas’s own “ethical irregularities.” [R.,
Doc. 4 at ¶ 56.] Recognizing a conflict of interest were he to
prosecute the paper, Thomas referred the investigation to a
neighboring jurisdiction, the Pinal County Attorney’s Office.
Arpaio began pressuring Pinal County to prosecute Plaintiffs.
Although the sheriff sent several letters strongly urging a
prosecution, the Pinal County Attorney’s Office took no
1
ARIZ. REV. STAT. § 13-2401(A) provides:
It is unlawful for a person to knowingly make available on the
world wide web the personal information of a peace officer, jus-
tice, judge, commissioner, public defender or prosecutor if the
dissemination of the personal information poses an imminent and
serious threat to the peace officer’s, justice’s, judge’s, commis-
sioner’s, public defender’s or prosecutor’s safety or the safety of
that person’s immediate family and the threat is reasonably
apparent to the person making the information available on the
world wide web to be serious and imminent.
Violation of the statute is a class 5 Felony. ARIZ. REV. STAT. § 13-
2401(C)
LACEY v. MARICOPA COUNTY 7627
action for nearly two years. Then, in 2007, it declined to pros-
ecute and returned the matter back to Thomas.
With the case back in Maricopa County, Thomas, still rec-
ognizing his own potential conflict of interest, decided to
appoint a Phoenix lawyer, Dennis Wilenchik, as special pros-
ecutor. Wilenchik was Thomas’s former law partner. He
agreed to the appointment, the County approved it, and on
June 26, 2007, Wilenchik took over The Phoenix New Times
investigation.
In late August 2007, before a grand jury was sworn for the
case and as part of his investigation into prosecuting The
Phoenix New Times for violating the privacy statute,
Wilenchik issued two subpoenas to Plaintiffs to produce
information and documents about its operations. Arizona law
requires prosecutors either (1) to present subpoenas to a grand
jury for approval before issuing them, or (2) if a prosecutor
issues a subpoena without receiving prior approval from a
grand jury, to report the issuance to a grand jury and to the
court within ten days. ARIZ. REV. STAT. § 13-4071(C).
Wilenchik did neither.
The subpoenas requested information about a broad variety
of subjects—including data about readers, editors, and report-
ers—related to any story critical of Arpaio. Plaintiffs filed a
motion to quash the subpoenas, but in late September, before
they had responded to the subpoenas and while their motion
was pending, Plaintiffs also published a story critical of
Wilenchik’s investigation. In response, the very next day,
Wilenchik issued a third subpoena seeking documents and
information relating to that story. He issued this third sub-
poena again without adhering to the requirements of Arizona
law. Around the time of the third subpoena, Wilenchik also
attempted to arrange an ex parte meeting with the state court
judge presiding over motions to quash. The judge held a
closed hearing on October 11, 2007 and called Wilenchik’s
attempt “absolutely inappropriate.” [R., Doc. 4 at ¶ 91.]
7628 LACEY v. MARICOPA COUNTY
After this hearing, and weeks after they received the sub-
poenas, Plaintiffs decided to publish a story that included the
subpoenas’ demands. Doing so was seemingly in violation of
ARIZ. REV. STAT. § 13-2812(A), which prohibits the publica-
tion of the nature or substance of grand jury proceedings.2
Plaintiffs do not allege they knew the subpoenas lacked any
connection with a grand jury when they published the story
exposing them.
The same day, after seeing the publication of the subpoe-
nas, Wilenchik filed a motion in state court for an Order to
Show Cause demanding Plaintiffs explain their actions. The
motion requested the state court hold The Phoenix New Times
in contempt, issue arrest warrants for Plaintiffs and their law-
yers, and fine Plaintiffs $90 million for publishing the con-
tents of the subpoenas.
That night, however, without waiting for the court’s deci-
sion, Wilenchik advised the police to send members of the
County’s Selective Enforcement Unit in unmarked, black
vehicles to the homes of Michael Lacey and Jim Larkin, the
publishers of The Phoenix New Times. The police did so and
arrested the publishers, who were booked and held in county
jail overnight. After a public outcry in response to the arrests,
Thomas withdrew Wilenchik’s appointment and disavowed
involvement in the subpoenas, court proceedings, or arrests.
Both Wilenchik and Arpaio have also denied ordering the
arrests.
2
ARIZ. REV. STAT. § 13-2812(A) provides:
A person commits unlawful grand jury disclosure if the person
knowingly discloses to another the nature or substance of any
grand jury testimony or any decision, result or other matter
attending a grand jury proceeding, except in the proper discharge
of official duties, at the discretion of the prosecutor to inform a
victim of the status of the case or when permitted by the court in
furtherance of justice.
LACEY v. MARICOPA COUNTY 7629
B. Procedural History
Plaintiffs brought a number of federal and state civil rights
claims against Defendants, alleging a conspiracy to violate
their rights because of Plaintiffs’ stories. The district court ini-
tially dismissed the claims against Thomas because he was
entitled to absolute immunity, as well as the claims against
the Maricopa County Attorney’s Office and the Maricopa
County Sheriff’s Office because it found that, as subdivisions
of Maricopa County, they could not be sued; rather, Plaintiffs
needed to sue the county itself. The district court dismissed
the federal and state claims against Wilenchik and Arpaio as
inadequately pleaded but gave Plaintiffs an opportunity to
amend as to those claims.
Plaintiffs filed an amended complaint, raising claims
directly against Maricopa County and restating their federal
and state claims against Wilenchik and Arpaio. The district
court then dismissed the claims for violations of 42 U.S.C.
§ 1983 and conspiracy to commit violations of 42 U.S.C.
§ 1983 because Arpaio and Wilenchik were entitled to quali-
fied immunity with respect to those claims. Also as to Arpaio
and Wilenchik, the district court dismissed the federal and
state claims for racketeering and negligence for failure to state
a claim. Having dismissed the federal claims, the district court
determined it no longer had pendant jurisdiction over the state
law claims, and instead of revisiting them in its second order,
it remanded the state law claims to Arizona state court. It also
dismissed the claims against Maricopa County because it
found Plaintiffs did not suffer any constitutional injury.
II. Discussion
We begin by analyzing Plaintiffs’ § 1983 claims for viola-
tions of the First, Fourth, and Fourteenth Amendments.3 With
3
Because Plaintiffs did not argue conspiracy or supervisory liability
claims in their opening brief, those claims are waived.
7630 LACEY v. MARICOPA COUNTY
respect to those claims, the district court granted Thomas
absolute immunity and Arpaio and Wilenchik qualified
immunity.
A. Absolute Immunity
“We review a decision by a district court to afford a public
official or a municipality absolute or qualified immunity de
novo.” Botello v. Gammick, 413 F.3d 971, 975 (9th Cir.
2005). The burden to establish absolute immunity rests on the
defendant who wishes to use it as a defense, and the “pre-
sumption is that qualified rather than absolute immunity is
sufficient to protect government officials in the exercise of
their duties.” Burns v. Reed, 500 U.S. 478, 486-87 (1991).
[1] Not all government officials are eligible for absolute
immunity. But “the Supreme Court has determined that cer-
tain government officials require absolute immunity from lia-
bility in order to enable them to function independently and
effectively, without fear of intimidation or harassment.
Accordingly, the Court has granted absolute immunity to . . .
judges, prosecutors, . . . and officials performing quasi-
judicial functions.” Fry v. Melaragno, 939 F.2d 832, 835-36
(9th Cir. 1991) (internal quotation marks, citations, and foot-
note omitted). “[T]he protections of absolute immunity
accorded prosecutors reflect the [dual] concern[s] that harass-
ment by unfounded litigation would cause a deflection of the
prosecutor’s energies from his public duties, and the possibil-
ity that he would shade his decisions instead of exercising the
independence of judgment required by his public trust.” Olsen
v. Idaho State Bd. of Med., 363 F.3d 916, 923 (9th Cir. 2004)
(internal quotation marks omitted).
In § 1983 litigation, “both sets of concerns are present and
serious.” Van de Kamp v. Goldstein, 129 S. Ct. 855, 860
(2009). The Supreme Court has explained the “public trust of
the prosecutor’s office would suffer” if prosecutors are more
concerned about their “own potential liability” than about
LACEY v. MARICOPA COUNTY 7631
making proper prosecutorial decisions. Imbler v. Pachtman,
424 U.S. 409, 424 (1976). And considering the frequency
with which criminal defendants bring § 1983 claims, this is a
very real concern. Van de Kamp, 129 S. Ct. at 860. Excessive
lawsuits will force prosecutors to hesitate in their decisions
for fear of liability and to spend valuable and limited time
defending suits rather than performing their official functions.
“[I]t has been thought in the end better . . . to leave unre-
dressed the wrongs done by dishonest officers than to subject
those who try to do their duty to the constant dread of retalia-
tion,” primarily out of our desire to place prosecutors in a
position to perform their public duty in the most effective way
possible. Id. at 859 (quoting Gregoire v. Biddle, 177 F.2d 579,
581 (2d Cir. 1949)).
[2] Absolute immunity protects prosecutors when they
engage in prosecutorial acts, which the Supreme Court has
defined as those activities “intimately associated with the
judicial phase of the criminal process.” Imbler, 424 U.S. at
430. “A prosecutor is granted only qualified immunity, how-
ever, if he or she is performing investigatory or administrative
functions, or is essentially functioning as a police officer or
detective.” Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir.
2003) (citing Buckley v. Fitzsimmons, 509 U.S. 259, 273
(1993)). When determining whether a particular action quali-
fies as prosecutorial, the court looks at “the nature of the func-
tion performed, not the identity of the actor who performed
it.” Kalina v. Fletcher, 522 U.S. 118, 127 (1997) (quotations
omitted). “[I]mmunity is justified . . . by the functions it pro-
tects and serves, not by the person to whom it attaches.” For-
rester v. White, 484 U.S. 219, 227 (1988).
While “the distinction between the roles of ‘prosecutor’ and
‘investigator’ [or administrator] is not always clear,” our cir-
cuit and the Supreme Court have provided some guidance.
Waggy v. Spokane Cnty. Wash., 594 F.3d 707, 711 (9th Cir.
2010). Regarding investigatory acts, they are “normally done
by police.” Genzler v. Longanbach, 410 F.3d 630, 638 (9th
7632 LACEY v. MARICOPA COUNTY
Cir. 2005). They involve “evidence gathering and witness
interviewing functions normally performed by a detective or
police officer.” Cousins v. Lockyer, 568 F.3d 1063, 1068 (9th
Cir. 2009) (internal quotation marks omitted).
[3] The most recent teaching on administrative acts comes
from Van de Kamp, 129 S. Ct. at 861-62. In that case a unani-
mous Supreme Court rejected the claim that absolute immu-
nity did not protect a county prosecutor’s failure to properly
train and supervise his lawyers in their obligations to disclose
evidence to defense counsel. Id. The Court concluded there
was no material difference between challenges to “general
methods of supervision” and supervision of an individual
trial. Id. at 862. Because the decisions at issue were linked to
the ultimate prosecution of the plaintiff and they “necessarily
require[d] legal knowledge and the exercise of related discre-
tion,” they were in fact prosecutorial. Id. Thus, in those
instances where prosecutors engage in acts that require legal
knowledge and the exercise of related discretion, absolute
immunity should apply.
With this background in mind, we turn to the claims against
Thomas and Wilenchik.
1. Thomas
Plaintiffs first contend Thomas’s selection of Wilenchik as
special prosecutor should not receive absolute immunity. We
agree with the district court that absolute immunity attaches.
[4] Plaintiffs argue the hiring of another prosecutor is sim-
ply an administrative function divorced from the prosecution
of a particular case. They rely on the Supreme Court’s obser-
vation that “absolute prosecutorial immunity [is justified]
only for actions that are connected with the prosecutor’s role
in judicial proceedings, not for every litigation-inducing con-
duct.” Burns, 500 U.S. at 494. Relinquishing prosecution to
a special prosecutor, however, is more than mere litigation-
LACEY v. MARICOPA COUNTY 7633
inducing conduct and “necessarily require[s] legal knowledge
and the exercise of related [prosecutorial] discretion.” Van de
Kamp, 129 S. Ct. at 862.
Our conclusion is controlled by Van de Kamp. In that case,
the Supreme Court considered a prosecutor’s “general meth-
ods of supervision” of its prosecutors and concluded absolute
immunity applied to those administrative tasks that “require
legal knowledge and the exercise of discretion,” including
supervision of prosecutors in the way they prepare for trial.
129 S. Ct. at 862. The Court rejected the notion the supervi-
sion had to be “related to an individual trial.” Id.
[5] As in Van de Kamp, Thomas’s tasks of selecting and
supervising a special prosecutor appointed for a particular
case are uniquely prosecutorial functions that require legal
knowledge, the exercise of discretion, and a legal analysis of
the case at hand. See id. at 862. In that sense, they are “unlike
administrative duties concerning . . . workplace hiring, payroll
administration, the maintenance of physical facilities, and the
like.” Id. Appointing a special prosecutor deals specifically
with the prosecutor’s role as advocate, requiring an assess-
ment of the needs of a particular case. Genzler, 410 F.3d at
636 (“A prosecutor is protected by absolute immunity from
liability for damages under § 1983 ‘when performing the tra-
ditional functions of an advocate.’ ”) (quoting Kalina, 522
U.S. at 131). The decision to appoint a special prosecutor
affects every aspect of litigation, including how it unfolds and
if and when it will be tried. Given the requirement of legal
knowledge and discretion that guides the decision, as well as
the effect the decision has on litigation, the appointment of a
special prosecutor is thus connected with the prosecutor’s role
in judicial proceedings.
[6] The essential decision to hire a special prosecutor
because of a conflict of interest also deserves absolute immu-
nity because it is part of deciding whether or not to prose-
cute—an act long protected by absolute immunity. See
7634 LACEY v. MARICOPA COUNTY
Hartman v. Moore, 547 U.S. 250, 262 (2006) (explaining
prosecutors are entitled to absolute immunity for “decision[s]
to prosecute”). Oftentimes, when deciding to prosecute, pros-
ecutors may recognize their own ethical conflict in a given
case, and may, therefore, choose to delegate the final decision
to a colleague or a special prosecutor. Such an act is suffi-
ciently linked to the decision to prosecute that it deserves
absolute immunity’s full protections.
In response, Plaintiffs direct us to Botello for the proposi-
tion that when prosecutors are involved in hiring another
prosecutor, they are engaged in an administrative function.
413 F.3d at 977. Botello has nothing to do with the hiring of
a special prosecutor to pursue a particular case. The facts
there involved a prosecutor’s attempt to retaliate against a
county investigator by interfering with the investigator’s job
prospects, and had nothing to do with a particular prosecution.
Plaintiffs fail to recognize that hiring a special prosecutor
is not the same as the general hiring of attorneys for positions
in the prosecutor’s office. Hiring Wilenchik required Thomas
to evaluate evidence and possible claims against The Phoenix
New Times, discretionary acts sufficiently tied to legal judg-
ment and judicial proceedings to justify absolute immunity.
That the matter never resulted in a trial is immaterial—the
existence of immunity does not rest on whether Wilenchik
ultimately proceeded to indictment or trial, or was fired or
quit in the meantime. Unlike the decision here, the routine hir-
ing of a staff prosecutor focuses on the competencies and
backgrounds of the applicants without any reference to a par-
ticular case or prosecutorial discretion. It does not require any
evaluation of evidence, possible claims in a given case, nor
any decision to prosecute. The hiring of a special prosecutor
because of a conflict of interest or some other reason, on the
other hand, involves all three.
Finally, we are persuaded also by the concerns of the
Supreme Court in Van de Kamp. Allowing plaintiffs to chal-
LACEY v. MARICOPA COUNTY 7635
lenge a prosecutor’s decision in situations such as this would
make conflict-concerned prosecutors hesitant to appoint spe-
cial prosecutors, even when doing so would best serve the
interests of justice. They would find themselves in a classic
no-win situation, where choosing to appoint a special prose-
cutor could expose them to liability in § 1983 suits, but choos-
ing not to appoint one could expose them to ethical
investigations or worse because of their perceived or actual
conflict of interest. Not only would they be hesitant to act;
they may very well decide to “shade [their] decisions” to
avoid personal liability. Olsen, 363 F.3d at 923 (citations
omitted). The “impediments to the fair, efficient functioning
of a prosecutorial office that liability could create” outweighs
the fact that “sometimes such immunity deprives a plaintiff of
compensation that he undoubtedly merits.” Van de Kamp, 129
S. Ct. at 864.
[7] In sum, the considerations the Supreme Court and our
circuit have given for allowing absolute immunity militate in
favor of granting it in this case. We therefore affirm the dis-
trict court’s decision that Thomas is protected by absolute
immunity.
2. Wilenchik
In a cross appeal, Wilenchik has appealed the district
court’s determination he does not qualify for absolute immu-
nity. He argues he was not engaged in investigatory activities
when he issued the document requests and had no role in the
arrests following the news article about the grand jury pro-
ceedings. We agree with the district court.
As discussed above, we employ a functional analysis, look-
ing not at the office or title of the actor but at the act per-
formed. Genzler, 410 F.3d at 636. Thus, “the actions of a
prosecutor are not absolutely immune merely because they are
performed by a prosecutor.” Id. (quoting Buckley, 509 U.S. at
273). “It [does] not matter what title that person [holds].”
7636 LACEY v. MARICOPA COUNTY
Waggy, 594 F.3d at 712 (discussing the Supreme Court’s
holding in Kalina, 522 U.S. at 127).
[8] Several Supreme Court cases inform our analysis. As
a general matter “if a prosecutor plans and executes a raid . . .
he has no greater claim to complete immunity than activities
of police officers allegedly acting under his direction.” Buck-
ley, 509 U.S. at 274 (quotation marks omitted). Moreover,
absolute immunity does not extend “to the prosecutorial func-
tion of giving legal advice to the police.” Burns, 500 U.S. at
496. In Burns, the prosecutor advised the police that probable
cause existed to arrest the plaintiff. The Court held the state
prosecutor was entitled to absolute immunity for participating
in a probable-cause hearing but not for giving legal advice to
the police. Id. at 492-93. Given this precedent, we have
emphasized, “[t]he Supreme Court has clearly stated that with
respect to advising police, prosecutors are entitled to qualified
not absolute immunity.” Ewing v. City of Stockton, 588 F.3d
1218, 1233 (9th Cir. 2009).
[9] As the Supreme Court recognized, it would be “incon-
gruous to allow” Wilenchik “to be absolutely immune from
liability” for advising police to make the arrests, “but to allow
police officers only qualified immunity for following the
advice.” Burns, 500 U.S. at 495. Moreover, as framed by the
complaint at the motion to dismiss stage, this is not a case
where Wilenchik reasonably could believe he had probable
cause that Plaintiffs had violated the law. Plaintiffs have suc-
cessfully alleged that because Wilenchik failed to adhere to
Arizona law when issuing the subpoena regarding the grand
jury proceedings, he knew it was not protected grand jury
material and he therefore had no probable cause to believe
Plaintiffs had violated the grand jury secrecy statute. Much
like the prosecutors in Buckley, as alleged, Wilenchik did not
have probable cause to arrest the plaintiffs “or to initiate judi-
cial proceedings during that period.” 509 U.S. at 274. “A
prosecutor neither is, nor should consider himself to be, an
advocate before he has probable cause to have anyone arrest-
LACEY v. MARICOPA COUNTY 7637
ed.” Id. In short, Plaintiffs have a colorable claim at this point
that Wilenchik ordered the arrests and that he did not have
probable cause to do so. They therefore have alleged facts
sufficient to overcome Wilenchik’s claim to absolute immu-
nity. Since absolute immunity is not available to Wilenchik at
the time of the arrests, we need not consider whether absolute
immunity was available at earlier stages in the investigation
of potential crimes arising from the privacy statute.
We emphasize, however, that discovery may result in a
more complete picture of the events surrounding the grand
jury proceedings and arrests—information which might sup-
port an argument that the investigation had moved to the pros-
ecution phase. For instance, Wilenchik may be able to clarify
the status of the matter before a grand jury in support of prob-
able cause or whether charges had been filed against Plain-
tiffs. Or he may provide enough facts to rebut any notion he
advised police or ordered the arrests. Should he do so, the dis-
trict court can consider any further arguments at the summary
judgment stage of the case. But at this point, the complaint
alleges Wilenchik knew the subpoena was not approved by a
grand jury and that he lacked probable cause to believe Plain-
tiffs committed a crime by publishing them.
[10] Thus, as it stands, Plaintiffs have sufficiently alleged
Wilenchik performed an investigatory function when he
advised the police to make the arrests. We therefore affirm the
district court’s decision not to grant Wilenchik absolute
immunity for ordering the arrests.
B. Qualified Immunity
Wilenchik and Arpaio both argue they are entitled to quali-
fied immunity with respect to Plaintiffs’ § 1983 claims. The
district court agreed, and we review that decision de novo. See
Botello, 413 F.3d at 975.
[11] “Qualified immunity shields public officials from
civil damages for performance of discretionary functions. It is
7638 LACEY v. MARICOPA COUNTY
‘an immunity from suit rather than a mere defense to liability;
and like an absolute immunity, it is effectively lost if a case
is erroneously permitted to go to trial.’ ” Mueller v. Auker,
576 F.3d 979, 992 (9th Cir. 2009) (quoting Mitchell v. For-
syth, 472 U.S. 511, 526 (1985)) (emphasis omitted). Under
qualified immunity, an officer is protected from suit when he
or she “makes a decision that, even if constitutionally defi-
cient, reasonably misapprehends the law governing the cir-
cumstances.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004).
Qualified immunity protects “all but the plainly incompetent
or those who knowingly violate the law.” Malley v. Briggs,
475 U.S. 335, 341 (1986). The standard leaves “ample room
for mistaken judgments.” Id. at 343.
In the § 1983 context, determining whether a defendant is
entitled to qualified immunity involves a two-pronged analy-
sis. First, “[t]aken in the light most favorable to the party
asserting the injury, do the facts alleged show the officer’s
conduct violated a constitutional right?” Saucier v. Katz, 533
U.S. 194, 201 (2001), overruled in part by Pearson v. Calla-
han, 129 S. Ct. 808, 818 (2009).4 Second, we must ask
“whether the right was clearly established.” Id. A right is
clearly established if “it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.”
Id. at 202. If we answer either of the two inquiries in the neg-
ative, then the officer’s conduct is protected by qualified
immunity. We have the discretion to decide “which of the two
prongs of the qualified immunity analysis should be addressed
first in light of the circumstances in the particular case at
hand.” Pearson, 129 S. Ct. at 818; see also Mueller, 576 F.3d
at 993-94.
4
While not negating the substantive analysis provided for in Saucier,
Pearson overruled Saucier’s mandate that lower courts first consider
whether a constitutional violation exists before reaching whether the right
at issue is clearly established. Pearson, 129 S. Ct. at 818. After Pearson,
lower courts may reverse the order of battle and answer the latter question
without ever answering whether a constitutional violation occurred. Id.
LACEY v. MARICOPA COUNTY 7639
1. Wilenchik
Plaintiffs contend the district court erred in granting
Wilenchik qualified immunity for directing the investigation,
which culminated with the arrests of Lacey and Larkin. They
argue Wilenchik’s conduct violated various constitutional
rights, and that he is liable for malicious prosecution. Con-
trary to the district court, we conclude Wilenchik is not enti-
tled to qualified immunity for Plaintiffs’ Fourth Amendment,
First Amendment, or malicious prosecution causes of action.
We agree with the district court, however, that Wilenchik is
entitled to qualified immunity regarding Plaintiffs’ Fourteenth
Amendment selective prosecution claim.
Fourth Amendment. Plaintiffs may proceed with their cause
of action under the Fourth Amendment. We find Plaintiffs
alleged sufficient facts to show that by ordering the arrests,
Wilenchik violated their clearly established constitutional
rights.
[12] “A claim for unlawful arrest is cognizable under
§ 1983 as a violation of the Fourth Amendment, provided the
arrest was without probable cause or other justification.” Dub-
ner v. City & Cnty. of San Francisco, 266 F.3d 959, 964 (9th
Cir. 2001). “Probable cause exists when, under the totality of
the circumstances known to the arresting officers (or within
the knowledge of the other officers at the scene), a prudent
person would believe the suspect had committed a crime.” Id.
at 966. Further, in instances where, as here, the arresting offi-
cers themselves may have had probable cause, liability may
extend to the supervisors who ordered the arrests but knew
probable cause did not exist. See Ashcroft v. Iqbal, 129 S. Ct.
1937, 1948-49 (2009) (observing that a supervisor can be lia-
ble for his or her acts, including orders to subordinates).
Defendants’ intent or motivation is irrelevant. Whren v.
United States, 517 U.S. 806, 813 (1996) (“Subjective inten-
tions play no role in ordinary, probable-cause Fourth Amend-
ment analysis.”).
7640 LACEY v. MARICOPA COUNTY
[13] Thus, while the district court correctly concluded the
arresting officers may have had probable cause to believe the
grand jury secrecy statute had been violated, the same may
not be true for Wilenchik. A crucial question is whether the
statute applies at all to the subpoenas issued, and, if so, sup-
ports the arrests. At this point, we lack sufficient information
to decide one way or the other. Considering the totality of the
circumstances, we must ask whether “a prudent person” who
knows the subpoenas were in fact not issued by a grand jury
or otherwise part of a grand jury matter, “would believe”
Plaintiffs “committed a crime.” Dubner, 266 F.3d at 966. As
we have already explained, Plaintiffs have alleged sufficient
facts to suggest Wilenchik knew Plaintiffs had not committed
a crime by publishing the subpoena because he knew it was
not truly grand jury material. They have thus alleged he vio-
lated a clearly established constitutional right by ordering
their arrests without probable cause to do so.5
Wilenchik is not entitled to qualified immunity as to Plain-
tiffs’ Fourth Amendment cause of action at this time.
[14] First Amendment. Plaintiffs also may proceed with
their cause of action under the First Amendment. Plaintiffs
contend Wilenchik violated their First Amendment rights by
conducting an investigation culminating in their arrest—
conduct that chilled their exercise of First Amendment rights.
We have held that “to demonstrate a First Amendment viola-
tion, [Plaintiffs] must provide evidence showing that by his
actions [Wilenchik] deterred or chilled [Plaintiffs’] political
speech and such deterrence was a substantial or motivating
factor in [Wilenchik’s] conduct.” Mendocino Envtl. Ctr. v.
Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999) (quot-
ing Sloman v. Tadlock, 21 F.3d 1462, 1496 (9th Cir. 1994))
(internal quotation marks omitted). Plaintiffs need not show
their “speech was actually inhibited or suppressed.” Id.
5
If it is true he had no role in the arrests, obviously there would be no
liability.
LACEY v. MARICOPA COUNTY 7641
Rather, our cases require “only a demonstration that defen-
dants intended to interfere with [Plaintiffs’] First Amendment
rights.” Id. (internal quotation marks omitted). We thus con-
sider “whether an official’s acts would chill or silence a per-
son of ordinary firmness from future First Amendment
activities.” Id. (quoting Crawford-El v. Britton, 93 F.3d 813,
826 (D.C. Cir. 1996), vacated on other grounds, 520 U.S.
1273 (1997)).
Plaintiffs have adequately alleged Wilenchik ordered the
arrests not because he had probable cause to do so but
because he intended to chill their protected speech. [R., Vol.
1, Doc. 4 at 23-24.] In White v. Lee, 227 F.3d 1214, 1226-29
(9th Cir. 2000), we held that an extremely intrusive investiga-
tion that did not culminate in an arrest—even when conducted
pursuant to a valid mandate—could chill the exercise of First
Amendment rights. This chilling effect is especially apparent
when investigative activities are alleged to have been carried
out in bad faith leading to the arrest and detention of the tar-
gets, as is alleged here. See Branzburg v. Hayes, 408 U.S.
665, 700 (1972) (explaining that prosecutors may not use
investigative tactics to “expose[ ] for the sake of exposure” or
“prob[e] at will and without relation to existing need” (quot-
ing Watkins v. United States, 354 U.S. 178, 200 (1957);
DeGregory v. Attorney Gen. of N.H., 383 U.S. 825, 829
(1966))); see also In re Grand Jury Proceedings, 5 F.3d 397,
400 (9th Cir. 1993) (suggesting bad-faith investigations impli-
cate First Amendment rights).
Thus, it bears emphasizing that the allegation Wilenchik
ordered the arrests, without probable cause, is especially
important. The parties do not seem to dispute that late-night
arrests and overnight detention would chill or silence a person
of ordinary firmness. See Skoog v. Cnty. of Clackamas, 469
F.3d 1221, 1232 (9th Cir. 2006) (agreeing that searching
someone’s office and seizing materials is sufficient to chill or
silence a person of ordinary firmness). Nor do they dispute
that “[a]rresting someone in retaliation for their exercise of
7642 LACEY v. MARICOPA COUNTY
free speech [is] violative of . . . clearly established [constitu-
tional law].” Beck v. City of Upland, 527 F.3d 853, 871 (9th
Cir. 2008). According to the amended complaint, Wilenchik
ordered the arrests of Lacey and Larkin the same day an arti-
cle critical of the investigation was published, even though he
lacked probable cause to believe the grand jury secrecy statute
had been violated.
[15] For these reasons, Plaintiffs have alleged sufficient
facts to state a claim upon which relief can be granted and are
entitled to proceed with their First Amendment cause of
action. They alleged facts demonstrating Wilenchik, in bad
faith, ordered the arrests without probable cause in response
to the article about the grand jury, and that he intended to chill
The Phoenix New Times’ exercise of First Amendment rights.6
Malicious Prosecution. Plaintiffs additionally brought a
§ 1983 claim for malicious prosecution, which the district
court dismissed because it found Plaintiffs failed to show a
lack of probable cause for the arrests. In general, a claim of
malicious prosecution is not cognizable under § 1983 if pro-
cess is available within the state judicial system to provide a
remedy. Bretz v. Kelman, 773 F.2d 1026, 1031 (9th Cir. 1985)
(en banc). Indeed, in most cases, malicious prosecution is a
state-law cause of action not cognizable in a § 1983 suit.
[16] We have, however, enunciated an important exception
to this rule: malicious prosecution constitutes a deprivation of
liberty without due process of law—and is thus a federal con-
stitutional tort—when it is “conducted with the intent to
deprive a person of equal protection of the laws or is other-
wise intended to subject a person to a denial of constitutional
rights.” Bretz, 773 F.2d at 1031. To prevail on a malicious
prosecution cause of action in a § 1983 suit, Plaintiffs “must
6
We again note that the question of probable cause is unresolved at this
point due to disputed historical facts. This claim may need to be revisited
as the record develops.
LACEY v. MARICOPA COUNTY 7643
show that [Defendants] prosecuted [them] with malice and
without probable cause, and that they did so for the purpose
of denying [them] equal protection or another specific consti-
tutional right.” Freeman v. City of Santa Ana, 68 F.3d 1180,
1189 (9th Cir. 1995).
[17] Plaintiffs have adequately alleged the elements of a
malicious prosecution. Wilenchik effected a criminal prosecu-
tion by ordering the arrests of Lacey and Larkin.7 See Phoenix
Control Sys., Inc. v. Ins. Co. of N. Am., 796 P.2d 463, 468
(Ariz. 1990) (“Malicious prosecution requires ‘an intent to
cause an arrest.’ ”) (quoting Restatement (Second) of Torts
§ 37, cmt. b (1965)). Further, as explained above, Plaintiffs
have alleged sufficient facts at this stage of the litigation to
suggest Wilenchik acted with malice and lacked probable
cause, and that the arrests violated Plaintiffs’ clearly estab-
lished First and Fourth Amendment rights. Wilenchik is thus
not entitled to qualified immunity regarding Plaintiffs’ mali-
cious prosecution cause of action.
[18] Equal Protection. Finally, Plaintiffs argue Wilenchik
violated the Equal Protection Clause by singling them out for
investigation and arrests. To prevail on a § 1983 equal protec-
tion claim under the “Fourteenth Amendment, a plaintiff must
demonstrate that enforcement had a discriminatory effect and
the police were motivated by a discriminatory purpose.”
Rosenbaum v. City & Cnty. of San Francisco, 484 F.3d 1142,
1152 (9th Cir. 2007) (citing Wayte v. United States, 470 U.S.
598, 608 (1985)). “To establish a discriminatory effect . . . ,
the claimant must show that similarly situated individuals . . .
7
Under common-law malicious prosecution doctrine, to be liable for
malicious prosecution an official must “initiate[ ] or procure[ ] the institu-
tion of criminal proceedings.” Restatement (Second) of Torts § 653
(1977). Criminal proceedings are instituted when “process is issued for the
purpose of bringing the person accused of a criminal offense before an
official or tribunal whose function is to determine whether he is guilty of
the offense charged . . . .” Id. § 654(2)(a). This may include an indictment,
information, arrest warrant, or actual arrest. Id. § 654(2)(b) & cmt. c.
7644 LACEY v. MARICOPA COUNTY
were not prosecuted.” Id. at 1153 (quoting United States v.
Armstrong, 517 U.S. 456, 465 (1996)). “To show discrimina-
tory purpose, a plaintiff must establish that the decision-
maker . . . selected or reaffirmed a particular course of action
at least in part because of, not merely in spite of, its adverse
effects upon an identifiable group.” Id. (quoting Wayte, 470
U.S. at 610) (internal quotation marks omitted). The district
court determined Plaintiffs failed to adequately plead that
similarly situated individuals were not prosecuted and thus
their selective enforcement claim failed. We agree.
We have emphasized that the “standard for demonstrating
a violation of equal protection is a demanding one.” United
States v. Arenas-Ortiz, 339 F.3d 1066, 1068 (9th Cir. 2003)
(internal quotation marks omitted). We also have emphasized,
however, that the “showing necessary to obtain discovery is
somewhat less: the defendant must produce some evidence
that similarly situated defendants . . . could have been prose-
cuted, but were not.” Id. at 1069 (internal quotation marks
omitted). Under this standard, Plaintiffs had to allege that
multiple publishers of Arpaio’s address information were sim-
ilarly culpable. See United States v. Armstrong, 517 U.S. 456,
466 (1996). Plaintiffs have failed to do this.
Plaintiffs were required to show that other publishers were
similarly situated to The New Times regarding both elements
of Arizona’s privacy statute: (1) knowingly making available
a public official’s personal information on the world wide
web, if (2) the dissemination of the information poses an “im-
minent and serious threat to the [public official’s] safety or
the safety of that person’s immediate family and the threat is
reasonably apparent to the person making the information
available on the world wide web to be serious and imminent.”
ARIZ. REV. STAT. § 13-2401(c). Plaintiffs have plainly shown
that multiple websites published Arpaio’s personal informa-
tion. But regarding the second element, Plaintiffs have com-
pletely failed to allege that the various publishers posed
similar threats to Arpaio and his family.
LACEY v. MARICOPA COUNTY 7645
Plaintiffs offer no facts to support the idea that publication
of Arpaio’s information on a political party register or county
real estate roll posed the same threat as its publication in con-
nection with aggressive allegations of public corruption. The
Amended Complaint states only: “There was no evidence that
Arpaio was then, or ever, under any credible threat or ‘immi-
nent harm’ as a result of the publication of his home address
on The New Times website. After all, his home address and
personal information [were] widely available on other web-
sites prior to the article.” [First Am. Compl. ¶ 41.] The
Lebowitz memorandum attached to the Amended Complaint
provides greater detail—it lists the websites that published
Arpaio’s information and singles out The New Times as hav-
ing an anti-Arpaio agenda—but it still offers no facts suggest-
ing that multiple publications of Arpaio’s address posed
similar threats.8 This is important because, as the privacy stat-
ute implicitly recognizes, highlighting a controversial public
figure’s address—and no one else’s—is fundamentally very
different than burying his address in an organizational list
potentially containing scores of entries. Thus, the mere fact
that multiple websites published Arpaio’s address does not
mean every website posed similar threats.
[19] In sum, although distinguishing between publications
on the basis of whether they were pro- or anti-Arpaio would
have been improper, distinguishing them on the basis of
8
This memorandum states that Maricopa County, the Election Commis-
sion, and the Republican Party also published Arpaio’s address. We note
that Maricopa County’s website would be shielded from liability under
Arizona law. See Ariz. Rev. Stat. § 13-2401(B). We also note that the
Lebowitz memorandum, if anything, supports a finding that in publishing
Arpaio’s address, The New Times posed an especially serious threat to his
safety. See Lebowitz Memo. at 8-9 (“None of the other web cites [sic],
historically, have resorted to writing articles against the Sheriff, using lan-
guage that is inflammatory, insulting, vituperative, and the like—all of
which having the effect of attracting those of the ‘lunatic fringe’ who, for
reasons of their own, view themselves as the Sheriff’s sworn enemies
. . . .”).
7646 LACEY v. MARICOPA COUNTY
whether they posed a threat to Arpaio—an element of the Ari-
zona statute—was legitimate. Plaintiffs have simply failed to
allege any facts suggesting that all websites that published
Arpaio’s address posed the same threat to Arpaio and his fam-
ily. Thus, we have no basis to infer that “similarly situated
defendants . . . could have been prosecuted, but were not.”
Arenas-Ortiz, 339 F.3d at 1068 (quotation marks omitted).
Finally, we note that Plaintiffs knew of threats made to
Arpaio when they published his address information. Plain-
tiffs do not allege that other publishers had similar informa-
tion.
***
In sum, Plaintiffs may proceed with their causes of action
under the First and Fourth Amendments, and with their mali-
cious prosecution allegations. We emphasize, however, that at
this stage of the proceedings, the record is sparse as to the evi-
dence surrounding the grand jury and Wilenchik’s motives,
and our analysis is based on the pleadings alone. Wilenchik
may have had the power to issue the subpoenas and may have
believed they were valid, or, as discussed above, he may be
able to show he was not involved in the arrests. But at this
stage of the proceedings, Plaintiffs are entitled to go forward
with their case on these claims.
2. Arpaio
[20] We agree with the district court that the allegations
against Arpaio fail to state a claim. First, Arpaio’s efforts to
persuade the county attorneys to pursue charges against Plain-
tiffs for violating the privacy statute do not violate the Consti-
tution. The district court was therefore correct to grant Arpaio
qualified immunity for all acts before the arrests.
[21] Second, Plaintiffs’ allegations regarding Arpaio’s
involvement in the arrests are too insubstantial to sustain a
§ 1983 claim. Under § 1983, Arpaio can be liable for the
LACEY v. MARICOPA COUNTY 7647
actions of his subordinates only if (1) he was personally
involved in a constitutional violation, or (2) there was a “suf-
ficient causal connection” between his wrongful conduct and
the constitutional violation. Hansen v. Black, 885 F.2d 642,
645-46 (9th Cir. 1989); see also Starr v. Baca, 633 F.3d 1191,
1194 (9th Cir. 2011) (supervisors are “individually liable in
§ 1983 suits when culpable action . . . is directly attributed to
them”). Sufficient personal involvement could include “culpa-
ble action or inaction in the training, supervision, or control
of . . . subordinates, . . . acquiescence in the constitutional
deprivations of which the complaint is made, or conduct that
showed a reckless or callous indifference to the rights of oth-
ers.” Starr, 633 F.3d at 1195.
[22] The district court correctly determined Plaintiffs
failed to meet this standard in their original complaint and
gave them an opportunity to amend. In their amended com-
plaint, Plaintiffs again failed to allege facts showing Arpaio
personally knew the subpoenas could not support a violation
of the grand jury secrecy statute, and, despite that knowledge,
was personally involved in ordering or carrying out the late-
night arrests. Indeed, the amended complaint, even taken in
the light most favorable to Plaintiffs, does not demonstrate a
sufficient causal connection between Arpaio’s actions and
constitutional deprivations.
For example, the amended complaint makes only general
allegations that Arpaio abused his power[, First Am. Compl.
¶ 19]; indirectly prompted Wilenchik to issue improper sub-
poenas and order the arrests[, id. ¶ 21]; and conducted the
arrests via the “Selective Enforcement Unit” [id. ¶ 111].
Plaintiffs say Arpaio did all of this with “improper and uncon-
stitutional motives.” [Id. ¶ 114]. Nowhere, however, do Plain-
tiffs set forth facts suggesting that Arpaio, rather than one of
his colleagues or associates, was closely connected to the
arrests—or that he lacked probable cause to carry out any of
the arrests. Indeed, the allegations are long on conjecture but
short on the factual nexus necessary to sustain a claim. See
7648 LACEY v. MARICOPA COUNTY
Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (to
sustain a § 1983 claim, “[a] plaintiff must allege facts, not
simply conclusions, that show that an individual was person-
ally involved in the deprivation of his civil rights”). Through
confusing and misleading “and/or” formulations, the amended
complaint has forced the district court and this court on appeal
to try to figure out who did what. Especially in the immunity
context, such bare assertions do not meet our minimal plead-
ing standards. See Moss v. U.S. Secret Serv., 572 F.3d 962,
970-72 (9th Cir. 2009). Even with generous pleading stan-
dards, we agree with the district court that the amended com-
plaint did not cure the deficiencies identified in the court’s
initial order dismissing the original complaint.
[23] Thus, the amended complaint’s allegations regarding
Arpaio are conclusory and devoid of “sufficient factual mat-
ter” to suggest his actions infringed clearly established consti-
tutional rights. See Iqbal, 129 S. Ct. at 1949. Plaintiffs simply
do not provide enough “factual content” to allow us to draw
a “reasonable inference” that Arpaio knew of the infirmities
of the subpoenas and arrests. Id. According to the Supreme
Court, “a court considering a motion to dismiss can choose to
begin by identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of truth.”
Id. at 1950. And that is, at most, what we find here—
conclusions not yet entitled to the assumption of truth. With-
out sufficiently specific factual allegations, Plaintiffs cannot
overcome Arpaio’s claims to qualified immunity, and the dis-
trict court was correct to dismiss the claims against him.9
C. State Law Claims
In its first order, the district court dismissed for failure to
state a claim Plaintiffs’ state-law negligence and malicious
9
That is not to say that Plaintiffs could not conceivably develop suffi-
cient facts to state a claim. They just have not done so with the amended
complaint.
LACEY v. MARICOPA COUNTY 7649
prosecution claims, but it offered Plaintiffs the opportunity to
amend their complaint. They did so, and in its second order,
the district court refused to revisit the state law claims,
explaining that because it had dismissed all of the federal
claims, it no longer had supplemental jurisdiction over the
remaining state law claims. The district court then remanded
the state claims to state court.
[24] As an initial matter, the district court’s justification
for remanding the state claims was incorrect. The Supreme
Court recently held that dismissal of federal claims does not
automatically deprive district courts of subject matter jurisdic-
tion over any supplemental claims. Carlsbad Tech., Inc. v.
HIF Bio, Inc., 129 S. Ct. 1862, 1866 (2009). Rather, the dis-
trict court retains discretion whether to exercise supplemental
jurisdiction over state law claims even after all federal claims
are dismissed. 28 U.S.C. § 1367(c)(3) (“The district courts
may decline to exercise supplemental jurisdiction over a claim
. . . if . . . the district court has dismissed all claims over
which it has original jurisdiction.”). Where a district court
“dismiss[es] every claim over which it had original jurisdic-
tion,” it retains “pure[ ] discretion[ ]” in deciding whether to
exercise supplemental jurisdiction over the remaining claims.
Carlsbad Tech., 129 S. Ct. at 1866. Thus, the district court
should have exercised its discretion and decided whether it
would have been appropriate to keep the state claims in fed-
eral court. In any event, because we reverse the district court’s
dismissal of some of Plaintiffs’ federal claims, the district
court should reconsider on remand whether it should exercise
supplemental jurisdiction over the state law claims. We real-
ize, of course, that pursuant to the district court’s remand, the
parties are currently litigating the state law issues in Arizona
court.
Plaintiffs also argue that the district court, in its first order,
improperly dismissed their state law claims. Because the dis-
trict court remanded all of the state law claims in its second
order, however, its dismissal of the state law claims in its first
7650 LACEY v. MARICOPA COUNTY
order is not appealable. “The amended complaint supersedes
the original, the latter being treated thereafter as non-
existent.” Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). “By
filing an amended complaint, plaintiff waives any error in the
ruling to the original complaint.” Id.
We thus emphasize that the district court’s ruling in its first
order regarding the state law claims is no longer binding on
either party.10 Indeed, the district court’s decision in its second
order to remand all of the state claims rather than to discuss
their merits supersedes its earlier order, and we therefore
decline to reach the merits of the first order.
D. Federal and State RICO Claims
[25] The district court dismissed Plaintiffs’ federal and
state RICO claims because they failed to allege any of the
predicate acts necessary for liability under either the federal
or state RICO statutes. See 18 U.S.C. § § 1961-1968; ARIZ.
REV. STAT. § § 13-2301–13-2322. We agree.
The federal statute defines racketeering to include a variety
of criminal acts that are indictable under federal and state law,
including “murder, kidnapping, gambling, arson, robbery,
bribery, extortion, dealing in obscene matter, or dealing in a
controlled substance or listed chemical” and other related
crimes. 18 U.S.C. § 1961(1). The Arizona RICO statute fur-
ther defines racketeering as any of a number of criminal activ-
ities committed for “financial gain.” ARIZ. REV. STAT. § 13-
2301(D)(4). Plaintiffs, both in the complaint and again in their
briefs on appeal, offer only vague allegations with no factual
support that defendants engaged in any of the above predicate
crimes, much less that they engaged in them for financial
gain. Such vague allegations simply are not enough to defeat
a motion to dismiss.
10
The district court did incorporate much of the first order into the sec-
ond order. When it did, however, it did so explicitly. That was not the case
regarding the state law claims.
LACEY v. MARICOPA COUNTY 7651
We therefore affirm the district court’s order on these
claims.
E. Maricopa County
In their amended complaint, Plaintiffs alleged Maricopa
County should be liable under § 1983 because Arpaio,
Wilenchik, and Thomas were policymakers whose decisions
and acts represented county policy, thereby making the
county directly liable. They also alleged the county board’s
approval of Wilenchik as special prosecutor should subject it
to direct liability. Since the district court had previously con-
cluded Plaintiffs had suffered no constitutional harm, it dis-
missed all of Plaintiffs’ claims against the County.
[26] Because we conclude Plaintiffs have alleged sufficient
facts to show a constitutional violation as to the arrests, we
reverse the district court’s decision and direct it on remand to
reconsider the claims against Maricopa County in the first
instance.11
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
dismissal of the claims against Thomas on absolute immunity
grounds and those against Arpaio on qualified immunity
grounds. We also AFFIRM the district court’s decision to
grant qualified immunity to Wilenchik regarding Plaintiffs’
equal protection claim against Wilenchik. We REVERSE,
however, the district court’s granting Wilenchik qualified
immunity as to Plaintiffs’ First Amendment, Fourth Amend-
ment, and malicious prosecution claims. We REMAND the
11
As a final matter, Defendants filed a motion to strike the portion of
Plaintiffs’ reply brief that addressed the district court’s dismissal of Plain-
tiffs’ § 1983 conspiracy claim. We do not consider new issues raised for
the first time in a reply brief. Eberle v. City of Anaheim, 901 F.2d 814, 818
(9th Cir. 1990). We therefore grant Defendants’ motion to strike.
7652 LACEY v. MARICOPA COUNTY
case to the district court with instructions to reconsider the
claims against Maricopa County and to proceed with the case
in a manner consistent with this opinion. Finally, we GRANT
Defendants’ motion to strike the portion of Plaintiffs’ reply
brief that addressed the district court’s dismissal of Plaintiffs’
§ 1983 conspiracy claim.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
The parties shall bear their owns costs on appeal.
BYBEE, Circuit Judge, concurring in part and dissenting in
part:
This case concerns an investigation initiated by “America’s
toughest sheriff,” Joseph Arpaio, against his political enemies
in the local news media. In the words of Arpaio’s own direc-
tor of legal affairs, Arpaio had targeted the Phoenix New
Times because the paper had been “historically anti-Arpaio.”
Arpaio’s excuse for demanding prosecution of the Phoenix
New Times was that its decision to post Arpaio’s home
address on its website allegedly violated an obscure Arizona
statute that prohibits dissemination of a law enforcement offi-
cer’s “personal information,” if doing so would pose an “im-
minent and serious threat” to the officer or his family, and
such threat is “reasonably apparent” to the publisher. ARIZ.
REV. STAT. § 13-2401(A). Never mind that Arpaio’s address
was already publicly available through numerous other web-
sites, including the websites of Maricopa County and the local
Republican Party. Despite this and the fact that no one had
ever been prosecuted under the statute, Arpaio used his con-
siderable political clout in an attempt to pressure various pros-
ecutors into charging the Phoenix New Times. After years of
investigation, two different County Attorneys found no
grounds for prosecution and refused to cave into Arpaio’s
LACEY v. MARICOPA COUNTY 7653
demands. Undeterred, Arpaio eventually managed to persuade
Maricopa County Attorney Andrew Thomas to appoint Den-
nis Wilenchik as special prosecutor to investigate the Phoenix
New Times. When Wilenchik issued subpoenas to the Phoenix
New Times, the paper responded by publicizing the content of
the subpoenas. Arpaio obliged by ordering the arrest, without
a warrant, of Phoenix New Times publishers Michael Lacey
and Jim Larkin for violating Arizona’s grand jury secrecy
laws. The only problem was that no grand jury had ever been
empaneled. Thus, the subpoenas were invalid ab initio.
Accepting the Plaintiffs’ version of the facts—which at this
stage of the litigation we must—this is a sordid tale of abuse
of public office. Nevertheless, despite the complaint’s
detailed allegations of reprehensible conduct, the majority
concludes that Arpaio is entitled to qualified immunity on the
grounds that Plaintiffs failed to adequately plead that Arpaio
was personally involved in the arrests. Since the complaint
details Arpaio’s extensive involvement in the alleged viola-
tions of Plaintiffs’ clearly established constitutional rights, I
respectfully dissent from the majority’s conclusion that
Arpaio is entitled to qualified immunity. I also respectfully
dissent from the majority’s conclusion that Special Prosecutor
Wilenchik is not liable for selective prosecution, because the
complaint shows that Wilenchik targeted the Phoenix New
Times for publicizing Arpaio’s home address while deliber-
ately disregarding the fact that numerous other websites had
done the same. I concur in the remainder of the majority’s opin-
ion.1
1
Specifically, I agree with the majority that County Attorney Thomas is
entitled to absolute immunity, and I agree that Special Prosecutor
Wilenchik is not entitled to absolute immunity. I also agree that Wilenchik
is not entitled to qualified immunity as to the First Amendment and Fourth
Amendment claims. Accordingly, I join Part II.A, along with the relevant
portions of Part II.B (except to the extent it holds that Wilenchik is entitled
to qualified immunity on the Fourteenth Amendment claim for selective
prosecution) of the majority’s opinion.
7654 LACEY v. MARICOPA COUNTY
I
The majority concludes that the complaint’s allegations are
“too insubstantial to sustain a § 1983 claim” under the First,
Fourth, and Fourteenth Amendments. Maj. Op. at 7646. At
this stage of the proceedings, however, Plaintiffs need not
prove anything to overcome Arpaio’s assertion of qualified
immunity. They need only “plead sufficient factual matter to
show that” Arpaio acted “for the purpose of” violating Plain-
tiffs’ constitutional rights. Ashcroft v. Iqbal, 129 S. Ct. 1937,
1948-49 (2009). We must accept all factual allegations in
Plaintiffs’ complaint as true and construe the complaint in the
light most favorable to Plaintiffs. Shanks v. Dressel, 540 F.3d
1082, 1084 n.1 (9th Cir. 2008). The action may proceed if the
facts in the complaint “allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 129 S. Ct. at 1949.
Although the factual allegations in the complaint are quite
detailed, the remainder of the complaint was not drafted in
anticipation of Iqbal. Nevertheless, even under Iqbal, Plain-
tiffs have alleged sufficient facts to sustain their claims. First,
the complaint makes clear that Arpaio never had grounds for
investigating Plaintiffs for violation of the Arizona privacy
statute. Although Plaintiffs had published Arpaio’s home
I also agree with the majority that the district court erred in remanding
Plaintiffs’ state law claims without considering whether to exercise its dis-
cretion to retain supplemental jurisdiction over these claims. I therefore
join Part II.C of the majority’s opinion.
On the state and federal RICO claims, I agree that the district court cor-
rectly concluded that Plaintiffs failed to state a claim. Accordingly, I join
Part II.D of the majority’s opinion.
Finally, because we reverse the district court’s grants of qualified
immunity in part, I agree that on remand, the district court should recon-
sider Plaintiffs’ claims against Maricopa County. I therefore join Part II.E
of the majority’s opinion.
LACEY v. MARICOPA COUNTY 7655
address on its website, the statute prohibits publication only
when it is “reasonably apparent” that doing so would pose an
“imminent and serious threat” to Arpaio or his immediate
family. ARIZ. REV. STAT. § 13-2401(A). The complaint plainly
alleges that Arpaio’s home address was already publicly
available, and that therefore it could not have been “reason-
ably apparent” to Plaintiffs that publicizing the address on the
Phoenix New Times’s website would pose any additional
threat to Arpaio or his family. Plaintiffs further point out that
Arpaio himself never felt imminently threatened by publica-
tion of his address, because he waited nearly one year before
asking prosecutors to investigate.2 First Amd. Compl. at 11-
12. The complaint also cites various reports from prosecutors
in the Pinal County Attorney’s office noting that the case
lacked merit precisely because there was no evidence that
publication posed an “imminent and serious threat” to Arpaio.
Id. at 12-13.
Second, the complaint plainly charges that Arpaio had no
basis for ordering Plaintiffs’ arrest. Plaintiffs were never
charged or arrested for violating the Arizona privacy statute.
Instead, they were arrested for publicizing the content of sub-
poenas issued as part of Special Prosecutor Wilenchik’s
investigation. Although it is a misdemeanor in Arizona to
publicize the contents of a grand jury proceeding, including
subpoenas, see ARIZ. REV. STAT. § 13-2812(A), no grand jury
had ever been empaneled, and, as Wilenchik and Arpaio
knew, the subpoenas were therefore never valid.
Despite these detailed factual allegations, the majority
remarkably concludes that Plaintiffs’ claims fail for want of
“specific factual allegations,” Maj. Op. at 7648, including
“facts suggesting that Arpaio . . . was closely connected to the
2
The complaint also claims that, after this lawsuit was filed, “Arpaio
mailed out Partisan Nomination Petitions, asking citizens to re-elect him
for Sheriff and publicizing his home address on the Petition.” First. Amd.
Compl. at 11.
7656 LACEY v. MARICOPA COUNTY
arrests,” id. at 7647. In particular, the majority emphasizes
that the complaint “failed to allege facts showing Arpaio per-
sonally knew the subpoenas could not support a violation of
the grand jury secrecy statute.” Id. I question whether the
majority’s conclusion is well-grounded in either law or fact.
As to law: The majority’s focus on whether Plaintiffs pled
specifics about Arpaio’s internal thought processes on the
subpoenas effectively demands that plaintiffs in § 1983 offi-
cer suits plead with a heightened level of specificity—a
demand that neither we nor the Supreme Court have ever
imposed. As the Supreme Court stated in Iqbal, all that is
required at the pleading stage is sufficient facts to permit us
“to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” 129 S. Ct. at 1949. Nowhere has
the Supreme Court or this court ever referred to the majority’s
undefined “specificity” standard.
The majority correctly lists the two avenues under Hansen
v. Black, 885 F.2d 642 (9th Cir. 1989), through which a super-
visory officer may be liable in a § 1983 suit: (1) if the officer
was “personal[ly] involve[d] in the constitutional depriva-
tion,” or (2) if there exists “a sufficient causal connection
between the supervisor’s wrongful conduct and the constitu-
tional violation.” Id. at 646. But after erroneously concluding
that there was no “personal involvement” by Arpaio in the
episode, the majority fails to offer any analysis of why Arpaio
is not liable under the second prong.
As to fact: Applying the Iqbal and Hansen standards to
Arpaio’s conduct, Plaintiffs have pled sufficient facts to per-
mit us to infer that Arpaio was personally involved, and that
his conduct set into motion a chain of events that he should
have known would lead to the wrongful arrests. Plaintiffs
allege that Arpaio had demanded that the County Attorney
prosecute the Phoenix New Times despite no cause for believ-
ing that Plaintiffs had violated the Arizona privacy statute.
First Amd. Compl. at 9-11. Attached to the complaint is a let-
ter written by Arpaio’s own legal director, Ron Lebowitz,
LACEY v. MARICOPA COUNTY 7657
acknowledging that Arpaio was targeting the Phoenix New
Times, but not the other websites that had also publicized
Arpaio’s home address, because the paper had been “histori-
cally anti-Arpaio,” had the “purpose [of] destroy[ing] the
Sheriff’s career,” and had published “articles against the Sher-
iff, using language that is inflammatory, insulting, vitupera-
tive, and the like.” First Amd. Compl., Ex. 1, at 8. Plaintiffs
further allege that after failing to persuade the Pinal County
Attorney to prosecute the case, Arpaio managed to persuade
Maricopa County Attorney Andrew Thomas to hire
Wilenchik as special prosecutor. First Amd. Compl. at 15, 18.
Although Arpaio denied ordering the arrests, Wilenchik “has
publicly claimed the arrests were conducted, authorized,
approved, and/or directed by Arpaio and/or his aides.” Id. at
24-25. Further, “Wilenchik’s staff admits that they advised
the Sheriff with respect to the arrests.” Id. at 25. Finally,
“Wilenchik’s former partner, William French, . . . confirmed
that Wilenchik did indeed authorize and advise Arpaio to con-
duct the arrests.” Id.
The existence of such substantial factual disputes should
normally weigh against granting a motion to dismiss. Instead,
the majority expresses frustration with the dueling narratives
cited in the complaint, complaining that Plaintiffs “ha[ve]
forced . . . this court . . . to try to figure out who did what.”
Maj. Op. at 7648. But that is beside the point. Our job at this
stage of the litigation is not to engage in factfinding or to
determine whose version of the facts to believe. That is the
purpose of discovery and trial. For now, we must accept
Plaintiffs’ version of the facts as true. See Shanks, 540 F.3d
at 1084 n.1.
Reading the facts in the light most favorable to Plaintiffs,
it is more than reasonable to infer that Arpaio had acted with
intent to violate Plaintiffs’ constitutional rights. Even if
Arpaio did not physically participate in Plaintiffs’ arrests,
there surely is an allegation of “a sufficient causal connection
7658 LACEY v. MARICOPA COUNTY
between [Arpaio’s] wrongful conduct and the constitutional
violation.” Hansen, 885 F.2d at 646.
I would allow the action to proceed against Arpaio.
II
With respect to Special Prosecutor Wilenchik’s liability, I
agree with the majority that Wilenchik is not entitled to quali-
fied immunity for the alleged First and Fourth Amendment
violations. I disagree, however, with the majority’s conclusion
that Plaintiffs are barred from pursuing their claim for selec-
tive prosecution under the Fourteenth Amendment against
Wilenchik.
To make a claim for selective prosecution, Plaintiffs must
establish (1) that similarly situated persons were not prose-
cuted, and (2) that the defendants were motivated by a dis-
criminatory purpose. See Rosenbaum v. City & Cnty. of S.F.,
484 F.3d 1142, 1152-53 (9th Cir. 2007). For Plaintiffs to pro-
ceed past a motion to dismiss on this claim, they need only
produce “some evidence that similarly situated defendants . . .
could have been prosecuted, but were not.” United States v.
Arenas-Ortiz, 339 F.3d 1066, 1068 (9th Cir. 2003) (internal
quotation marks omitted). Here, the complaint alleges that
other websites that published Arpaio’s home address, such as
the websites of Maricopa County and the local Republican
Party, were similarly situated to the Phoenix New Times, but
were not prosecuted. First Amd. Compl. at 11-12, 33.
The majority faults the Plaintiffs because the complaint
fails to allege that publication on the other websites “posed
similar threats to Arpaio and his family.” Maj. Op. at 7644.
But this factor would be relevant only if we accept the
Wilenchik’s factual assertion that publication on the Phoenix
New Times’s website posed an “imminent and serious threat”
to Arpaio or his family in the first place. In the complaint,
which we must accept as true, Plaintiffs repeatedly emphasize
LACEY v. MARICOPA COUNTY 7659
that there was never any evidence suggesting that the publica-
tion of Arpaio’s address—by either the Phoenix New Times or
by any of the other websites which had published the same
information—ever posed an “imminent and serious threat” to
Arpaio. See First Amd. Compl. at 10 (“There was no evidence
that Arpaio was then, or ever, under any credible threat of
‘imminent harm’ as a result of the publication of his home
address on The New Times web site.”); id. at 11 (“Arpaio,
himself, obviously did not feel any ‘imminent’ threat from the
. . . article, because he was content to wait for many months
before requesting any investigation. . . . In fact, Arpaio has
continued, to this day, to publicize and publish his home
address to citizens and the public at large.”). Because we can
reasonably infer from Plaintiffs’ well-pleaded facts that publi-
cation of Arpaio’s address by both the Phoenix New Times
and the other websites never posed any threat to Arpaio,
Plaintiffs do not need to allege that publication by the other
websites posed an “imminent and serious threat” in order to
show that the other websites were similarly situated.3
Even worse, the majority takes it upon itself to decide not
only that the Phoenix New Times posed a threat to Arpaio and
his family, but that the other websites did not pose a threat.
Thus, the majority finds for itself (on an appeal from a motion
to dismiss) that “highlighting a controversial figure’s address
—and no one else’s—is fundamentally very different than
burying his address in an organizational list potentially con-
taining scores of entries.” Maj. Op. at 7645. The majority con-
cludes, again on its own authority, that “the mere fact that
multiple websites published Arpaio’s address does not mean
3
Plaintiffs also have alleged sufficient facts to show that Wilenchik
acted with discriminatory purpose. The invalid subpoenas, as summarized
in the complaint, sought any materials in Plaintiffs’ possession, including
confidential sources, relating to any news article “that was critical of Sher-
iff Arpaio.” First Amd. Compl. at 19. This fact alone is sufficient to permit
one “to draw the reasonable inference” that Wilenchik acted with the pur-
pose to discriminate against Plaintiffs on the basis of their “anti-Arpaio”
views. Iqbal, 129 S. Ct. at 1949.
7660 LACEY v. MARICOPA COUNTY
every website posed similar threats.” Id. Finally, the majority
applauds the very First Amendment deprivation claimed by
the plaintiffs: the majority finds that the Phoenix New Times
“posed an especially serious threat to [Arpaio’s] safety” pre-
cisely because it had used “inflammatory, insulting, [and]
vituperative” language in its articles criticizing Arpaio. Id. at
7645 n.8 (quoting Arpaio’s director of legal affairs, Ron
Lebowitz). Accordingly, the majority concludes, it was proper
for Wilenchik to prosecute the Phoenix New Times alone
because it alone “posed a threat to Arpaio.” Id. at 7646. In my
view, the majority’s analysis only confirms that Plaintiffs
should have their opportunity to prove that publication of
Arpaio’s address posed no imminent threat to him and that
Wilenchik’s decision to single out the Phoenix New Times
was a poorly disguised effort to silent Arpaio’s critics.
Since I believe Plaintiffs have adequately alleged that
Wilenchik failed to prosecute similarly situated entities and
did so with discriminatory purpose, I would reverse the dis-
trict court’s grant of qualified immunity as to this claim.
III
Although the Supreme Court has retired the liberal no-set-
of-facts standard that we traditionally applied when consider-
ing motions to dismiss, see Iqbal, 129 S. Ct. at 1944; Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 562-63 (2007)
(abrogating Conley v. Gibson, 355 U.S. 41 (1957)), that does
not give us license to disregard factual allegations in a com-
plaint as we see fit. But in dismissing Plaintiffs’ selective
prosecution claim against Wilenchik, the majority relies on a
version of the facts that is contrary to the factual allegations
in the complaint. The majority also ignores the Supreme
Court’s admonishment in Iqbal against requiring plaintiffs to
plead “detailed factual allegations” in order to proceed past a
motion to dismiss. 129 S. Ct. at 1949 (“[T]he pleading stan-
dard Rule 8 announces does not require ‘detailed factual alle-
gations,’ but it demands more than an unadorned, the-
LACEY v. MARICOPA COUNTY 7661
defendant-unlawfully-harmed-me accusation.” (quoting
Twombly, 550 U.S. at 555)). Yet by dismissing Plaintiffs’
complaint against Arpaio for failure to plead sufficient details
of Arpaio’s personal involvement and mental state in this
unfortunate episode, the majority has raised pleading stan-
dards well beyond what we or the Supreme Court have ever
required.
For the foregoing reasons, I respectfully dissent on the
issue of Arpaio’s liability as to all constitutional claims. I also
respectfully dissent on the issue of Wilenchik’s liability for
selective prosecution.